*1 114
Argued 12, 14, October affirmed December (JONES), Appellant, v.
ELIASON
Respondent.
COMPANY,
UNITED AMUSEMENT
William L. Hallmark, Portland, the cause respondent. for himWith on the brief were McMena Joseph Lang, min, Jones, & Portland.
HOLMAN, J. brought damages resulting Plaintiff this action for upon merry- from incurred when she fell go-round park. ap- at defendant’s amusement She pealed judgment pursu- from a for defendant entered ant to a verdict. merry-
Plaintiff took a small child for a ride on the go-round upon which had two levels or tiers of animals platform which to ride. The outer tier was on a about a foot lower than the inner tier. Plaintiff and the child upon upper platform upon rode the animals on the and, leaving the‘merry-go-round completion at the of their injured fell and ride, herself. She claims that slipped stepped her when she cap foot on a bottle *3 upper platform which was on the floor of the and that upper platform she fell from the to the lower one and complains. suffered the of which she Plaintiff first contends the court erred in not in structing required that defendant was to use highest degree safety, for her required of care as by 460.355(2), patron while she was a ORS on applicable plaintiff’s amusement device. Insofar as statutory contention, law is as follows: “460 310 Definitions for ORS 460.310 . 460.380. As used in 460.310to ORS 460.380, unless the con- requires text otherwise:' “(1) ‘Amusement ride’ means vehicle, boat device.moving upon
other mechanical or within along through structure, eables or by rails, the air centrifugal force or or otherwise, across water, convey individuals for one or more that is used to or recreation. diversion amusement, entertainment, by way illustration: ride’ of includes, ‘Amusement commonly “(a) known as Ferris Devices parachute tunnels of love towers, wheels, carousels, coasters. and roller generally equipment
“(b) associ- Devices and sports lifts, such as ski activities, winter ated with j-bars, ski chair lifts and mobiles, tows, t-bars, ski tramways. aerial # % * ft required care; standards of ex- Rules; “460.355 (1) regulated inspected
emption In devices. of (1) adopting pursuant of rules to subsection ORS para- applicable in mentioned to devices 460.360, graph department (1) (b) 460.310, subsection of ORS of safety guided by standards be shall approved Association. the American Standards “(2) operator of such devices The owner or carrier; however, deemed not a common shall be highest operator shall exercise such owner or persons using safety degree devices for the of of care operation compatible practical with the being used. the devices # * ??
# m just quoted that the re- the statutes is clear from degree highest quirement of care be used for sport devices patrons winter amusement is limited to (1) (b) and that carou- in 460.310 enumerated ORS as among devices there enumerated. are not sels giving the court erred contends Next, it confused causation because causa on its instruction legal The instruction was ultimate tion as follows: ‘proximate cause’ means a cause *4 “The term sequence, produces unbroken direct, in a
which, complained injuries damages of. An or the injury proximately by is caused an act or failure appears injury to act whenever it that was reasonably probable either a natural or conse- quence negligent of such act or iaüure to act.” Plaintiff is correct in her contention that the instruc- intermingles concepts. may tion the two An act be the damage though damage cause of even is not its reasonably probable consequence. natural or Whether damage reasonably probable or not is the natural or consequence concept of an act is a which concerns ulti- legal liability, mate and not causation. say, justifies
We cannot however, that the error suspect concept reversal. rather We is more confusing pre- to members of the bench and bar who, sumably, capable legal concepts, are of such fine than jurors. it is to When the was told, was, as it negligent act must “a be cause in a which, direct, sequence, produces damage unbroken complained seriously we do not think it of,” misled by language admittedly, which, followed it concept relating mixed causation with a correct to ulti- mate
Plaintiff also contends that the trial court over emphasized contributory negligence in its instructions prejudiced thereby. Contributory and that she was negligence many was mentioned times, but it was usu always, coupled ally, though correspond not with the ing possibility negligence by mention of de fendant. It was thus mentioned connection with pleadings, proof, claims made burden of causa parties. tion, of the and the duties instructions, as repetitious. whole, were somewhat judge The trial “* * * recognized and told the some of may appear repetitious, to be instructions these but *5 you put any emphasis them than don’t more on would reading In the on others.” instructions of the impression one does not receive the that the court court, overemphasizing plaintiff’s is duties of care as com- pared with those of defendant. objects giving
Plaintiff next to the of the first following sentence of the instruction: premises—that “The owner of is, the amuse- company ment in this case—is not an insurer or guarantor against people accidents to who come premises. the The onto ordinary owner is bound to use keep premises reasonably
care to the in a peo- and is liable for condition, safe not ple coming premises proof onto the unless there is negligent duty, performing was that it that such and negligence proximate is the cause of the * * injury objected portion to is a correct of the instruction merely way enlarging law. It is a of statement of the proved upon instruction that defendant must be guilty duty plain- of a breach of owed to to have been before he can tiff which caused the accident be held responsible. the kind of instruction which it is is give. give fail to error either to or to not assignment of error relates Plaintiff’s last to a jury which defendant asked for and which view was The accident the trial court. allowed occurred evening; jury early view taken in in the requested permission Defendant to turn afternoon. merry-go-round lights, plaintiff objected but on during they jury be turned off would also unless lights required the to be left on The court view. jury was there. After the view, time entire mistrial on the basis for a moved up merry-go-round was “lit like Christmas tree” present lights the time of the were not at the mistrial and said: The court denied accident. “* * * [I]f here turns out from the evidence it lights yes- fell the on that the time she going terday I’m to instruct the weren’t on, lights they yes- disregard anything saw about the terday.” expected,
Subsequently, a dis- there was as could be lighting concerning adequacy pute at the of the lighting had been and whether the time the accident changed subsequent There is no indication thereto. *6 judge requested fulfill the trial to his that disregard jury above-quoted the tell the to intention to during jury The lighting the view. trial it saw its, during jury instructions: the court did tell you day you the other that I told “Now, strictly jury going it was to and that view, to the you it came in. You the as evidence orient are instructed case as to evidence in this view is not only
any but is to en- ease, issue in the you evidence as it better the understand to able you presented and assist to in the courtroom you weighing to here that came what evidence in the courtroom.” objection much that be not so seems to
Plaintiff’s jury lights time of the off at the were not turned of the trial for the discretion a matter which was view, lights existing had been rather, but, court, subsequent lights to the acci- repaired added and new concerning dispute in the evidence is a dent. There way this court at can, is no and there matters, these disputes to better factual time, resolve testimony advantage have. All the could than lights jury, if it had and found was before subsequent repaired accident, to added been merry-go-round light would to such addition
121 advantageous, have been rather than to detrimental, plaintiff. way there is no circumstances, Under necessary determine the factual basis for consideration of the mistrial. judgment
The of the trial court is affirmed. specially concurring. DENECKE, J., specially only emphasize I that the in concur “proximate given. struction on cause” should not be given The instruction is taken almost verbatim from Jury 15.01. This instruc Uniform Instruction No. longer tion is no correct for the reasons stated in the majority specially concurring opin opinion and in the Greyhound Corp., ion in 567, Stoneburner v. Or (1962). P2d 812 longer acceptable an
“Proximate cause” is no phrase. intermingles physical causation the issue of causally with that of under what circumstances con- imposes phrase nected conduct is mis- leading customary to the because in its “cause,” meaning, has no with the issue of when connection liability imposed causally should be for connected conduct.